In R (Romania Vargas Sevilla) -v- Secretary of State for Home Department [2023] CO/4745/2023 Mr Clive Sheldon KC sitting as Deputy High Court Judge granted permission to Judicially Review on all four grounds, which comprised;-

  1. The defendant breaches its statutory duty under Section 95 and/or Section 98 Immigration and Asylum Act 1999 and/or breaches defendants own policies due to her failure to provide adequate accommodation for the claimant as someone with a disability.
  2. The defendant acts in breach of the claimant Article 8 rights as to private under ECHR, contrary to the defendants obligation in Section 6 Human Rights Act 1998.
  3. The defendant has a Public Sector Equality Duty (Section 149 Equality Act 2010), that it has breached by failing to monitor and prioritise those with disabilities.
  4. The defendant acts in breach of Section 20 Equality Act 2020 in that it fails to take reasonable steps to bring about reasonable adjustments to the defendants policy, to take into the individuals disability and needs.

The claimant, a single man,  suffers from a number of ailments, which causes him a disability. He is presently being treated at a hospital in London, where he is to undergo surgery and where he attends for treatment, on a regular basis.

He has lived in initial hotel accommodation, since he arrived in the UK to claim Asylum. He was granted Section 95 asylum accommodation on 2nd June 2022. He remains in initial despite having complained about the nature of the accommodation and the health issues in relation to pre-cooked foods.He argues that the defendant fails to appreciate the importance of nutrition to him in light of his ailments and the adverse impact of a nutritionally poor diet.

Further, the defendant argued that the nature of multiple occupancy initial accommodation was  unsuitable and that the grant of Section 95, did not require removal to another accommodation. Alternatively, the defendant contended that the delay in transferring him to dispersal accommodation was not unreasonable in the circumstances.

During the hearing, submissions focused on the defendants exercise of the public sector equality act duty under Section 149 Equality Act 2010. The ground contends that the defendant operates a system that fails to prioritise those with disabilities and therefore the defendant has not, in the exercise of her functions, had due regard to the need to eliminate discrimination and the need to advance equality of opportunity between persons who share the protected characteristic of disability and persons who do not share it. Further, it was argued that the defendant had breached the Section 20, 21 and 29 (2) Equality Act 2010, when the defendant failed to take reasonable steps to remove the disadvantage of his having to remain in initial accommodation on a long- term basis.

The claimant referred to the decision of R (DMA) -v- SSHD [2020] EWHC 3416, per #308  concluded that the SSHD had breached her PSED and had observed ‘in the case of disabled individuals, the absence of monitoring means that it cannot be fully understood why the use of priorities is not working and where, and what must be done about it’,  however, that case did not concern examination of whether in the dispersal arrangements under Section 95, deployed priority tracks. The present system is far haphazard and involves representation being considered on a case-by-case basis.

In this application, the claimant believed, inter alia, that the defendant has not conducted an impact assessment, let alone any monitoring exercise of retaining asylum applicants in initial accommodation beyond the shortest of periods (35 days is suggested the length in the Home office policy). Nor, is it believed that an impact assessment has been properly conducted in relation to any other policy/ practice/ procedure that it might be operating, such as extending the use of initial accommodation to longer-term asylum accommodation. It is believed that the defendant does not in fact have an effective system, whereby it is able to properly address priority needs.

The Queen on the application of Sivaraman & Others -v- SSHD (2020) CO/2357/2020 (in a judicial review that did not proceed to oral permission renewal) – the Equality Act assessment revealed that the SSHD had failed in respect of policy concerning video hearings to conduct an impact assessment in respect of disability.

Earlier this month my colleague David Gardner wrote about his success in SA, R (On the application of) v Secretary of State for the Home Department [2023] EWHC 1787, where Mr Justice Fordham gave detailed judgment about Home Secretary’s statutory duty to provide ‘adequate’ accommodation for an asylum seeker and her children. Permission in that case was granted on the basis that the Home Secretary has acted in breach of her statutory duty and/or has failed without good reason to adhere to her published policy (‘policy’). The other grounds including systemic failings are to be addressed in another case which I had obtained permission, on grounds drafted by David, R (DK) v SSHD CO/4585/2020. Philip Rule KC will lead David Gardner in that Judicial Review.

Apart from the fact that this claim concerns a single man with a disability, PSED is not a ground under consideration, which is what makes the grant of permission in this case, significant, if it gets to be considered at a full hearing.

Nabila Mallick specialises in Equalities law both in the field of public law and employment law.